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TMI Blog2015 (5) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of the services availed instead of 25% of the service tax as per notification no. 32/2004. Thereafter, the appellant filed refund claim of the excess Service Tax paid on transportation services i.e. 75% of the Service Tax paid by them during the period 01.01.2005-31.05.2007 on 15.06.2007. Therefore, show cause notice was issued for rejection of refund claim on the following grounds: (i) Limitation (ii) Unjust enrichment 3. The adjudicating authority found that appellant has passed the bar of unjust enrichment on the basis of various verifications i.e. Certificate issued by the Chartered Accountant and amount shown as receivable from the Excise Department and sanctioned certain refund claim but rejected the refund claim for Rs. 8, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax has not been collected from the buyers and Service Tax has been paid to the transporters and obtained certificate from them with regard to this aspect. Further, after verification of certificate issued by the Chartered Accountant showing that the amount of refund claim has not formed part of cost of production. Moreover, same has been shown as receivable from the Excise Department. But while review took by the Ld. Commissioner has not considered this ground and in routine manner he passed the order of rejecting the refund claim. Therefore, said order is required to be set aside. 6. For appeal no. ST/00214/2009 which is against the rejection of refund claim by Commissioner (A) of Rs. 8,26,637/- on the ground of limitation, he submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued before it and in the present case Ld. Commissioner (A) has declined to modify or simply affirm the order. Further, in the case of Shiva Builders (Supra) the Hon ble High Court has framed following issue whether the Commissioner can pass order in revision under section 84 of the Finance Act 1994 when the issue of the appeal decided by the Commissioner (A) is entirely a different issue. In that case the Hon ble High Court has answered as under: "Exercise of jurisdiction under section 84(4) of the Finance Act when appeal has been preferred non-permissible." 9. Therefore, I hold that the order passed by the Commissioner in review is not sustainable in the eyes of the law. On merits also the Ld. Commissioner (A) has ignored to consider the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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